Citation Nr: 0837281
Decision Date: 10/29/08 Archive Date: 11/05/08
DOCKET NO. 04-38 928 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty from January 1988 to June
1988 and from June 1991 to November 1991. He also
subsequently served in the National Guard.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a January 2004 rating decision of the RO, which
denied the veteran's claim of entitlement to service
connection for tinnitus.
The veteran testified at a hearing before the undersigned
Acting Veterans Law Judge via video teleconference in January
2006. The transcript of the hearing is associated with the
veteran's VA claims folder. In March 2006, the Board
remanded this case.
FINDING OF FACT
Tinnitus is not attributable to service.
CONCLUSION OF LAW
Tinnitus was not incurred or aggravated in service.
38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 2002);
38 C.F.R. §§ 3.303, 3.304 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the claimant's claim, a
letter dated in July 2003 which fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the claimant about the information and evidence
that VA will seek to provide; and (3) informed the claimant
about the information and evidence that the claimant is
expected to provide.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a statement of the case (SOC)
or supplemental statement of the case (SSOC) can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the SOC or SSOC. See Mayfield v.
Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield III). As
a matter of law, the provision of adequate VCAA notice prior
to a readjudication "cures" any timing problem associated
with inadequate notice or the lack of notice prior to an
initial adjudication. See Mayfield III, (citing Mayfield v.
Nicholson, 444 F.3d at 1328, 1333-34).
In any event, the Board finds that any deficiency in the
notice to the claimant or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
claimant, the United States Court of Appeals for Veterans
Claims (Court) found that the evidence established that the
claimant was afforded a meaningful opportunity to participate
in the adjudication of the claim, and found that the error
was harmless, as the Board has done in this case.)
In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial, and that once an error is identified
as to any of the four notice elements the burden shifts to VA
to demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F.3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores.
If any notice deficiency is present in this case, the Board
finds that the presumption of prejudice on VA's part has been
rebutted in this case by the following: (1) based on the
communications sent to the claimant over the course of this
appeal, the claimant clearly has actual knowledge of the
evidence the claimant is required to submit in this case; and
(2) based on the claimant's contentions as well as the
communications provided to the claimant by VA, it is
reasonable to expect that the claimant understands what was
needed to prevail. See Sanders; see also Simmons v.
Nicholson, 487 F. 3d 892 (2007).
VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The claimant's VA medical treatment
records, identified private medical record, and Social
Security Administration (SSA) records, have been obtained, to
the extent available. In addition, the veteran's complete
service treatment records have been requested and those which
are available were obtained. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159. There is no indication in the record that any
additional evidence, relevant to the issue decided herein, is
available and not part of the claims file. The claimant was
also afforded a VA examination in May 2006. 38 C.F.R.
§ 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326.
The veteran was also sent information regarding the
appropriate disability rating or effective date to be
assigned in May 2008. See Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
In summary, the Board finds that "it is difficult to discern
what additional guidance VA could have provided to the
veteran regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc) (observing that "the VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims."); Reyes v. Brown, 7 Vet. App. 113,
116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(both observing circumstances as to when a remand would not
result in any significant benefit to the claimant).
Competency and Credibility
The veteran contends that he has tinnitus which is related to
service. With regard to lay evidence, the Board must
initially evaluate whether the evidence is competent. If so,
credibility must be assessed.
The veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Competent medical evidence means evidence provided
by a person who is qualified through education, training or
experience to offer medical diagnoses, statements or
opinions. See Duenas v. Principi, 18 Vet. App. 512, 520
(2004). A layperson is generally not capable of opining on
matters requiring medical knowledge. Routen v. Brown, 10
Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet.
App. 124, 127 (1998). Thus, while the veteran is competent
to report what comes to him through his senses, he does not
have medical expertise. See Layno v. Brown, 6 Vet. App. 465
(1994).
However, the Federal Circuit has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court
indicated that varicose veins was a condition involving
"veins that are unnaturally distended or abnormally swollen
and tortuous." Such symptomatology, the Court concluded,
was observable and identifiable by lay people. Because
varicose veins "may be diagnosed by their unique and readily
identifiable features, the presence of varicose veins was not
a determination 'medical in nature' and was capable of lay
observation." Thus, the veteran's lay testimony regarding
varicose vein symptomatology in service represented competent
evidence.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a fact issue.
However, although the veteran is competent in certain
situations to provide a diagnosis of a simple condition such
as a broken leg or varicose veins, the veteran is not
competent to provide evidence as to more complex medical
questions. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007).
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted")). See Barr, supra.
The veteran is competent to report that he has ringing in his
ears. However, he is not competent to provide a medical
opinion as to etiology of currently diagnosed tinnitus. See
Jandreau; see also Woehlaert.
Service Connection
Some of the veteran's service treatment records apparently
are missing . Under such circumstances, the Court has held
that there is a heightened obligation on the part of VA to
explain findings and conclusions and to consider carefully
the benefit of the doubt rule. See Cuevas v. Principi, 3
Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991).
It is further noted, however, that the case law does not
lower the legal standard for proving a claim for service
connection, but rather increases the Board's obligation to
evaluate and discuss in its decision all of the evidence that
may be favorable to the claimant. See Russo v. Brown, 9 Vet.
App. 46 (1996). Moreover, there is no presumption, either in
favor of the claimant or against VA, arising from missing
records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18
(2005) (the Court declined to apply an "adverse presumption"
where records have been lost or destroyed while in Government
control which would have required VA to disprove a claimant's
allegation of injury or disease in service in these
particular cases).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304.
This includes injuries or diseases incurred during active
duty for training (ADT), or injuries suffered during inactive
duty training (IDT). See 38 U.S.C.A. §§ 101(24), 106.
Reserve and National Guard service generally means ADT and
IDT. ADT is full time duty for training purposes performed
by Reservists and National Guardsmen pursuant to 32 U.S.C.A.
§§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38
C.F.R. § 3.6(c). Basically, this refers to the two weeks of
annual training, sometimes referred to as "summer camp," that
each Reservist or National Guardsman must perform each year.
It can also refer to the Reservist's or Guardsman's initial
period of training.
IDT includes duty, other than full-time duty, performed for
training purposes by Reservists and National Guardsmen
pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38
U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this
refers to the twelve four-hour weekend drills that each
Reservist or National Guardsman must perform each year.
These drills are deemed to be part-time training.
Generally, an individual who has only Reserve or National
Guard service (ADT or IDT with no active duty) is not a
veteran as legally defined. In the service connection
context, for example, this means that the presumption of
soundness upon entry into service and the presumptive service
connection provisions of 38 C.F.R. § 3.307, applicable to
active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§
1111, 1112, 1137; 38 C.F.R. § 3.307.
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. 38
C.F.R. § 3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno, supra.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
The available service treatment records do not reflect
complaints, findings, or diagnoses of tinnitus. In November
1991, the veteran specifically denied having ear problems,
and the ear evaluation was normal. On an October 1994
National Guard examination, the veteran again denied having
any ear trouble, and physical examination revealed normal
ears.
In March 1993, the veteran filed a claim for VA compensation.
However, he did not claim that he had tinnitus at that time.
Likewise, on a March 1994 VA examination conducted in
conjunction with that claim, the veteran did not report that
he had tinnitus nor was tinnitus diagnosed. In a later June
2001 VA general medical examination, the veteran again failed
to complain of tinnitus, and tinnitus was no diagnosed. The
silence and the normal findings constitute negative evidence.
See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub
nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir.
2002) (noting that the definition of evidence encompasses
"negative evidence" which tends to disprove the existence of
an alleged fact).
Even though the veteran had made an earlier application for
VA compensation, he did not file a claim of service
connection for tinnitus until June 19, 2003. A veteran's
delay in asserting a claim can constitute negative evidence
that weighs against the claim. Shaw v. Principi, 3 Vet. App.
365 (1992).
On that same day, June 19, 2003, the veteran received VA
outpatient treatment. At that time, he reported that he had
tinnitus which had been present for several years. He was
diagnosed as having tinnitus.
In order to ascertain if the diagnosed tinnitus is related to
service, the veteran was afforded a VA examination in May
2006. The claims file was reviewed prior to the examination.
The veteran reported that he had been exposed to loud noises
during service. The veteran described his duties as a radio
and teletype operator. He indicated that he was exposed to
loud noises emanating from the headphones and the truck
noise. In addition, he was exposed to the loud noises of the
tank engines and tank guns. The veteran also related that he
had noise exposure outside of service as a jackhammer
operator and on the firing range. However, he related that
he wore ear protection. The veteran stated that he was first
aware of his tinnitus in approximately December 1991 or
January 1992. Initially, it only occurred at night. Within
the past few years, it had been occurred every morning and
night, intermittently. He described the duration and
intensity. However, the examiner noted that on the National
Guard examination in October 1994, he denied having tinnitus.
The examiner also noted that the veteran's post-service claim
of service connection for tinnitus was in 2003, although the
veteran reported that the onset was 1991 or 1992. The
examiner concluded that the current physical examination
included hearing test responses which did not indicate that
the tinnitus was the result of acoustic trauma. The hearing
examination itself was within normal limits.
The Board attaches the most probative value to the VA
examiner's opinion as it is well reasoned, detailed,
consistent with other evidence of record, and included review
of the claims file. See Prejean v. West, 13 Vet. App. 444,
448-9 (2000) (Factors for assessing the probative value of a
medical opinion are the physician's access to the claims file
and the thoroughness and detail of the opinion.)
In sum, the competent evidence does not establish that the
veteran's tinnitus had its onset during service. The Court
has consistently held that, under the law cited above, "[a]
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service." Watson v. Brown, 4 Vet. App. 309, 314
(1993). This principle has been repeatedly reaffirmed by the
Federal Circuit, which has stated, "a veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability." Boyer v. West, 210 F.3d 1351, 1353
(Fed. Cir. 2000).
If lay testimony is determined to be credible, it establishes
two of the three elements required for service connection
under 38 C.F.R. § 3.303(b): (1) that the condition was
"noted" in service, and (2) evidence of post-service
continuity of the same symptomatology. See Savage v. Gober,
10 Vet. App. 488 (1997). The third element, evidence of a
relationship between the present disability and the
postservice symptomatology, may be established through lay
testimony if the relationship and the disability are capable
of lay observation. See id; Hickson v. West, 12 Vet. App.
247, 253 (1999). However, laypersons are not competent to
render medical opinions. Barr, see also Grover v. West, 12
Vet. App. 109, 112 (1999)
There is no inservice documentation of tinnitus. The
November 1991 examination reflected no complaints of tinnitus
and normal ears on examination. Further, the October 1994,
March 1994, and June 2001 examination reports do not reflect
complaints or diagnoses of tinnitus. The two National Guard
examination specifically reflected denials by the veteran of
ear problems and indicated that the ears were normal on
evaluation. The VA examinations reflected no report
whatsoever by the veteran that he had ringing in his ears.
In light of those reports, the veteran's current statements
that his tinnitus began in 1991 or 1992 are not credible.
Further, as noted, he is not competent to provide an etiology
for the currently diagnosed tinnitus, the diagnosis which was
made in 2003, the same day as his claim of service
connection. Rather, the most probative evidence contradicts
his assertions. The VA examination report pointed out the
inconsistencies in his assertions and included a physical
examination which concluded that currently diagnosed tinnitus
was not attributable to acoustic trauma.
Despite the veteran's contentions that he had tinnitus for
over a decade, the record is devoid of supporting evidence.
In essence, the veteran's assertions of chronicity and
continuity are unsupported. See Mense v. Derwinski, 1 Vet.
App. 354, 356 (1991) (normal medical findings at the time of
separation from service, as well as absence of any medical
records of a diagnosis or treatment for many years after
service, is probative evidence against a claim.).
The Board may not base a decision on its own unsubstantiated
medical conclusions but, rather, may reach a medical
conclusion only on the basis of independent medical evidence
in the record. Hensley v. Brown, 5 Vet. App. 155 (1993).
Neither the Board nor the veteran is competent to supplement
the record with unsubstantiated medical conclusions. Colvin
v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely,
health professionals are experts and are presumed to know the
requirements applicable to their practice and to have taken
them into account in providing a diagnosis. See Cohen,
supra. The medical professional stated that tinnitus is not
due to inservice acoustic trauma.
Accordingly, service connection is not warranted.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. The preponderance is against the
veteran's claim, and it must be denied.
ORDER
Service connection for tinnitus is denied.
____________________________________________
C. KEDEM
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs